"Charting Australia"


Broadcast 2 March 1997


Hello I'm Heather McLean. Thanks for joining me for Charting Australia. On the program today, a new strategy for scouring away racist attitudes. And one day to clean-up the environment. Also, before the Australian Cricket Team flew off to South Africa they autographed a cricket bat for Charting Australia to give away, and the details are coming up.


First shaking off the judiciary's colonial past.




MCLEAN: The neglect by Indian and Australian lawyers of each other is 'tragic and puzzling'. That's according to The Honourable Justice Michael Kirby, who sits on the bench of the High Court. The highest court in the land.


KIRBY: Well, it's tragic because we have a common legal system, we both share the common law. It's puzzling because we both speak the same language, in court we have the same approach to solving legal problems, we rely on the same precedence in the sense that we've got the same technique of judicial decision making, and this means we've got a lot in Common. And yet, if you actually practice in an Australian court, whether as a judge or an advocate, it's relatively rare that you hear an Indian case sighted. The same is true in India, it's very rare that you have Australian cases sighted. So the point I've been making is that we should get to know more about each other. We can do that now through information technology, and we will find in each country a treasure house that we can call upon.


MCLEAN: Although there are those similarities, there's also such a different and political context in which the laws have developed.


KIRBY: That's true, but many of the problems are still the same. For example, we are both federations, we both have written constitutions, we both have traditions of individual freedom and political democracy. Although the social circumstances are in many ways different, the basic law of contract is the same, the basic criminal law is very similar, and so the basic foundations of the legal system are sufficiently similar to have analogies and assisting logic that we can call upon in each country. We do tend to use English authority. The Indian courts look to the English law lords for their guidance - we do too. But instead of doing that, or in addition to doing that in the future we should be looking to each other.


MCLEAN: And you've said before that you've personally drawn on Indian law yourself, can you give me some examples?


KIRBY: Well, we had a very interesting case, when I was President of the Court of New South Wales, concerning whether officials have to give reasons to people who are affected by decisions that they make -and that was a controversial question which was undecided in Australian law. In order to decide which way Australian law should go, or which way the common law should go on this, I looked not only at the English authority, and Canadian and United States cases (judge made decisions), but also some leading cases of the Supreme Court of India, and I found in those cases a great deal of guidance and assistance. We can find assistance at the edges, at the boarder land of legal principal where the courts are looking at new problems, and looking at the way in which courts in common law countries have solved those problems.


MCLEAN: So, what ideas do you have to encouraging Australian lawyers for example, to look beyond their current reference points and look to India?


KIRBY: Well, there are many things that can be done. In a speech in New Delhi in October I listed, I think, about ten or twelve things that we could do. One of them, for example, is to have a chair of Indian law in an Australian University. Curtin University in Western Australia springs to mind because it looks out at the Indian Ocean and at India and the sub-continent. We could also encourage Indian judges, retired judges, and professors to come to our law schools and help teach Australian students, and vice-a-versa. I, myself, have been appointed an honorary visiting professor at the National Law School in Bangalore in India, and I go there as often as I can. I went there in January 1997 to give lectures on Australian constitutional law and on common approaches to legal problems. There was a great deal of fascination by the young law students in India on the analogies and the lessons that could be learnt from Australia. And I have no doubt that if the reverse were the case, if an Indian judge were to come to Australia, the law students here would also have their eyes opened to the great wealth of experience, and in some ways the innovative principals that the judiciary of India can teach us.


MCLEAN: The Honourable Justice Michael Kirby.